The Cox Shock: A Tectonic Shift or Just a Tremor? (Guest Blog Post)

by guest blogger Prof. Guy Rub, Temple University Beasley School of Law

The Supreme Court’s decision in Cox v. Sony sent a shockwave through the copyright world. In an opinion that felt like a cold shower for copyright owners, Justice Thomas essentially dismantled the familiar “specific knowledge plus material contribution” framework for contributory liability that had governed the circuits for decades.

If you take the opinion at face value, holding a service provider liable for user infringement now seems to require either inducement (per Grokster) or showing that the service was “tailored to infringement” (presumably, following Sony). Meeting either of those bars is exceptionally difficult, and on paper, it could massively shrink the scope of secondary liability.

The result is that copyright owners seem to have lost a major tool to address large-scale infringement facilitated by intermediaries. More broadly, this result seems to undermine the delicate balance between copyright owners, their consumers, and intermediaries.

Unsurprisingly, the reaction has been swift and sharp. Paul Goldstein, right on this blog, called the opinion “ill-considered.” Shira Perlmutter, the Director of the Copyright Office, nicely summarized the overall sentiment, suggesting that the court “put little thought” into the implications of its opinion and noting that “we’re all still reeling from this a bit.”

I am not here to defend the Cox majority. Not even remotely. The decision seemingly overrules, perhaps unknowingly, dozens of circuit precedents and veers away from settled common-law notions of liability. It feels both unjust and inefficient to let a party that knowingly assisted in infringement walk away scot-free.

But I am here to offer a prediction: the sky will not fall. While Cox looks like a tectonic shift, I suspect its actual impact will be significantly more modest. If history is any guide, the copyright system is remarkably adept at absorbing, mitigating, and—dare I say—circumventing the Supreme Court’s attempts at central planning.

The Myth of Supreme Court Supremacy

In a forthcoming article, Circumventing the Supreme Court: Copyright Law and the Limits of Judicial Centralization, I argue that we consistently overestimate the Court’s ability to actually change copyright law.

We’ve seen this movie before. Every few years, the Court hands down a decision that seems poised to reshape the field: Star Athletica supposedly wrecked separability and opened the floodgates for industrial design protection; Aereo looked like the death of the volitional conduct doctrine; Kirtsaeng presumably gutted the ability of copyright owners to exercise post-sale control; and Eldred and Golan were read as giving Congress a blank check on copyright expansion, allowing it to extend its terms, maybe indefinitely. Each of these decisions generated a wave of commentary predicting dramatic consequences. I’ve participated in that tradition too.

But none of those things really happened. Instead, the copyright system showed incredible resiliency.

The reason is partly structural: the Supreme Court is an absentee landlord. Outside of fair use, it handles any given copyright question like a cicada emergence: showing up, then disappearing for another couple of decades. Secondary liability is a perfect example: Sony (1984), Grokster (2005), Cox (2026). That’s a 21-year cycle.

In the long stretches between those decisions, lower courts and other repeat players run the show. When the landlord is away, the tenants can rearrange the furniture.

So, how will the system respond to the hole that Cox just punched in copyright law’s liability scheme? Yogi Berra taught us that it’s tough to make predictions, especially about the future. Still, I can offer a few incomplete and non-mutually exclusive possibilities.

1. Embracing the Minority: The “Aereo” Maneuver

The boldest way to circumvent a majority opinion is probably to treat the minority view as the true law of the land. It sounds like heresy, and in many respects it is. But we have a recent blueprint: the volitional-conduct doctrine after Aereo.

In Aereo, the Justices split over the volition requirement. Justice Scalia, in dissent, embraced it and the body of circuit law that had developed around it over the years. Justice Breyer’s majority, by contrast, didn’t even mention it. Instead, it reasoned that because the system looked like a cable company, it should be treated like one, brushing aside the (very real) technological nuances.

Scalia warned that this would leave automated systems in legal limbo for decades. In reality, it took months. Lower courts essentially shrugged and went back to business as usual, applying volitional conduct as if Aereo had never happened.

When plaintiffs argued the doctrine was dead, the Second, Fifth, and Ninth Circuits doubled down with reasoning that was delightfully brazen: they heavily leaned on Scalia’s dissent as evidence that the doctrine was well-established, and even now endorsed by the Supreme Court. And as for the majority, it did not “directly dispute or comment on Justice Scalia’s explanation of the doctrine” or “explicitly reject Justice Scalia’s formulation of the volitional-conduct requirement.”

Cox might meet a similar fate. Justice Sotomayor’s concurrence seems aligned with pre-2026 circuit precedent and thus provides a ready-made framework to preserve the old regime.

Will that be a faithful reading of the majority opinion? Not really. But fidelity hasn’t always been the driving force in applying Supreme Court copyright opinions, like Aereo. So we shouldn’t be too surprised if judges lean on Sotomayor’s opinion, noting, with a straight face, that Thomas did not “directly dispute” or “explicitly reject” her analysis.

2. Narrowing to the Facts: The Grokster / Kirtsaeng Treatment

If you can’t ignore a decision, you can shrink it until it only fits specific, idiosyncratic facts.

We saw this with Grokster. Lower courts confined inducement to situations involving exceptionally egregious conduct. The inducement doctrine became real, but also rare. We saw it with Kirtsaeng, too, where the Court embraced a broad reading of the first sale doctrine, but lower courts were reluctant to apply its logic in other contexts, including in the digital space. The first-sale doctrine remained broad, but inapplicable to most of today’s content.

Cox could follow the same path. Courts can emphasize its facts: a passive service provider with no specific knowledge that took some steps to discourage infringement. Multiple statements in the Cox majority, such as “this Court has repeatedly made clear that mere knowledge that a service will be used to infringe is insufficient to establish the required intent to infringe,” can assist lower courts in distinguishing it from defendants whose knowledge is broader.

There is a wrinkle here. On their face, Grokster and Kirtsaeng left significant leeway to lower courts. The Cox majority, sadly, did not leave as much space. Textually, it is needlessly broad (a rare move for the Roberts court, both outside and within copyright law). That makes narrowing it harder, at least on paper. But harder is not the same as impossible. We didn’t have to wait long to see that dynamic play out. As Eric noted, just six days after the Supreme Court opinion, a district court in California distinguished it because Cox, presumably unlike the defendant there (Twitter), discouraged copyright infringement.

3. Expanding Neighboring Doctrines: The Star Athletica Pivot

The most likely response, in my view, is not to resist Cox directly, but to work around it.

When the Supreme Court closes a door, lower courts often just open a window in the next room. This is the hydraulic nature of copyright law: if you squeeze one doctrine, the pressure simply moves elsewhere.

Consider, for example, Justice Thomas’s previous copyright masterpiece:  Star Athletica. It might seem to have thrown the door wide open to the copyrightability of industrial designs, but many lower courts achieved comparable filtering, most often through broader use of other doctrines, such as the idea-expression distinction, the merger doctrine, or scènes à faire. Others granted plaintiffs a noticeably thin copyright. Overall, those moves mitigate (although not eliminate) the potential impact of Star Athletica.

There are many doctrines that can attempt to fill the gap that Cox left in effective copyright enforcement. I’ll mention a few immediate suspects:

A. Direct liability

If contributory liability becomes harder to prove, plaintiffs might lean more heavily on direct liability. That means revisiting doctrines that have traditionally limited it, especially volitional conduct.

The volitional conduct doctrine has always been somewhat fragile: thin textual grounding, no clear Supreme Court endorsement, and uneven (and somewhat unclear) lower court application. It would not take much for courts to stretch it. Eric alluded to the same issue in discussing a recent Twitter decision, where a district court held (quite strangely, in my opinion) that the company acted with volition when it did not respond to DMCA takedown notices.

B. Vicarious Liability

Vicarious liability could also do more work. It requires the right and ability to control the infringing activity and a direct financial benefit from it. Historically, courts have applied this doctrine cautiously in the online context. But if contributory liability becomes harder to establish, courts may be more willing to find supervisory power in a platform’s architecture and a financial benefit in its business model.

C. Inducement

Finally, courts can stay within the contributory framework but expand what inducement means. More than the Grokster Court itself, it was lower courts that chose to define the doctrine narrowly. In the immediate aftermath of Grokster, many commentators worried that inducement would be applied broadly and threaten the development of the internet. In practice, however, lower courts have been reluctant to find inducement without evidence that the defendant actively marketed its services to infringers. Other factors the Court pointed to in Grokster, such as a failure to filter or a business model tied to infringement, have not been enough.

But after Cox, if specific knowledge is indeed not a route to find contributory liability, courts may be more willing to treat a wider range of conduct as evidence of intent to induce infringement.

4. The Long Shot: A Legislative Reform

There is also, at least in theory, a legislative path.

Congress has been largely inactive in copyright for decades. But a doctrinal shock can create political momentum. If Cox is perceived as significantly weakening copyright enforcement, rights holders may push for statutory reform.

Whether Congress will act is uncertain. Structural constraints that have limited copyright legislation in recent decades remain in place. But Cox increases the pressure. Shira Perlmutter has already hinted in that direction.

Conclusion: Copyright resiliency

Nobody, of course, knows what will happen next. But I would be very surprised if courts allow intermediaries to knowingly facilitate infringement without meaningful legal consequences.

If Cox created that gap, the repeat players within the copyright ecosystem, especially lower courts that routinely deal with copyright law, will find ways to bridge it. That is what the copyright system has done repeatedly.

Cox may be the rare decision that genuinely reshapes the scope of copyright protection, but if so, it would be the first time in decades. Instead, I’d comfortably bet that the lower courts will be rearranging the furniture.